Guns in the Family

This photo provided by the Port Authority of New York and New Jersey Friday March 30, 2012 shows a gun that Port Authority po
This photo provided by the Port Authority of New York and New Jersey Friday March 30, 2012 shows a gun that Port Authority police offciers found on a man they saw a man jumping the turnstile at the 14th Street PATH station in New York around 4:30am Friday. Port Authority spokesman said Rubin Sanabria, 36, arrested for jumping the turnstile was carrying this .40-caliber Smith & Wesson handgun loaded with hollow-point bullets. (AP Photo/Port Authority)

Are we safer armed or disarmed? Does the Second Amendment mean we have an absolute right to own guns, or should the exercise of that right be limited because it places our fellow citizens in danger? As this debate rages on the national stage, we family lawyers deal with it on a different and far more intimate battlefield: the private struggle of the custody case.

It comes up when one parent owns guns and the other does not. In my experience, it's always the father. The mother is anxious that guns in her ex's house are not stored properly, meaning unloaded, locked, in a gun safe and with ammunition kept in a separate, secure location. The father is prone to saying, Of course, that is how my guns will be kept and you insult me by suggesting otherwise; these are my children, after all. But the mother is not reassured, because she knows this was not his consistent practice when they lived together. Or perhaps they never shared a household, and she has no knowledge of his habits and little reason to trust him.

One client's husband, a police officer, frequently left his service weapon under the bed or inside a drawer in their bedside table. She vividly described a scene from their marriage when she woke up one morning to the chilling image of their 3-year-old standing next to the bed, holding his father's gun. Years after they separated, her husband denied the event or that he ever kept his gun accessible. He told her he was a good father for taking his service weapon home. He was protecting his family.

This father says his child is safer because he has a gun. My client argues the opposite. Will a judge refuse to award him custodial time under these circumstances? Not likely. He is a cop; he is entitled to bring his gun home. Realistically, the best I can do for my client is ask the judge to include a provision in her order requiring the father to take appropriate safety precautions. That way, if we learn that he hasn't complied, he can be held in contempt of the court's order, and possibly lose custodial time. But, my client will say, what good is that? It will be too late. One slip-up -- like the time her son played with that gun -- could prove fatal.

There's also the issue of hunting. Another client's ex-husband wanted to take their three boys, ages 8, 10 and 12, on a hunting trip. My client was worried about her young children being taught to handle and shoot guns. Did the father need her consent to take their sons hunting? I argued with his lawyer that, although I could find no case law directly on point, common sense dictates that teaching children to handle firearms qualifies as a major decision upon which parents should mutually agree. The father's lawyer disagreed. Ultimately, my client chose not to litigate this issue. The likelihood of getting a judge to block the hunting trip was little to none, given the lack of allegations of careless or unsafe use of guns by her ex. My client's concern was about the inherent riskiness of the activity, not the particular actions of her husband.

Are my clients right to be worried about their children being injured or killed by a firearm owned by the other parent? Yes, and the evidence is compelling. Children are safer in homes with no firearms, the American Academy of Pediatrics has concluded unequivocally. Guns kept in the home are significantly more likely to be involved in fatal or nonfatal unintentional shootings, criminal assaults or suicide attempts than to be used in self-defense. But these are national statistics, not individual circumstances. Can a judge instruct a father who does safely store his gun that his daughter may not sleep at his house because, statistically, she is at greater risk of injury or death in his (gun-owing) household? No. And that's the tension. The court can only assess the individuals before it.

National policy on this issue should be based on the empirical findings. And if gun ownership declines as a result of policy changes, my clients' children -- as a group -- will be safer. But that won't help in arguing their particular cases.